BILL NUMBER: SB 2025	CHAPTERED  09/30/00

	CHAPTER   1048
	FILED WITH SECRETARY OF STATE   SEPTEMBER 30, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 30, 2000
	PASSED THE ASSEMBLY   AUGUST 21, 2000
	PASSED THE SENATE   MAY 8, 2000
	AMENDED IN SENATE   APRIL 6, 2000

INTRODUCED BY   Senator Burton

                        FEBRUARY 25, 2000

   An act to amend Sections 19231, 19240, and 19702 of, and to add
Section 19632 to, the Government Code, relating to state civil
service.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 2025, Burton.  State civil service:  persons with disabilities:
  administrative proceedings.
   (1) The State Civil Service Act prohibits discrimination against a
person because of sex, race, religious creed, color, national
origin, ancestry, marital status, physical disability, or mental
disability.  Under the California Fair Employment and Housing Act, it
is an unlawful employment practice, unless based upon a bona fide
occupational qualification, or except where based upon applicable
security regulations established by the United States or the state,
to engage in specified discriminatory employment practices, including
hiring, promotion, and termination on the same bases as the State
Civil Service Act, but the California Fair Employment and Housing Act
also includes sexual orientation as one of the bases.  The State
Civil Service Act also establishes state policies and prescribes
requirements for employing individuals with a disability in state
service.
   This bill would apply the definitions contained in the California
Fair Employment and Housing Act pertaining to unlawful practices to
the State Civil Service Act.
   (2) Under the State Civil Service Act, the State Personnel Board
is responsible for the Limited Examination and Appointment Program,
which is an alternative to the traditional civil service examination
and appointment process to facilitate the hiring of persons with
disabilities in state service.
   This bill would apply the definition of "disability" in the
California Fair Employment and Housing Act to the Limited Examination
and Appointment Program.  This bill would specify that this
definition of "disability" is superseded by the definition of that
term in the federal Americans with Disabilities Act of 1990 if
broader civil rights protection would thereby be produced for persons
with mental or physical disabilities.
   (3) Existing law authorizes a court to inquire into the validity
of any final administrative order or decision made as the result of a
proceeding in which a hearing is required to be given and other
requirements are to be met.
   This bill would, in any proceeding brought pursuant to the above
described provisions for the purpose of inquiring into the validity
of any final administrative order or decision by the State Personnel
Board, require an award of costs or attorney's fees to the petitioner
to be borne by the real party in interest and not the State
Personnel Board, unless there is no real party in interest.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 19231 of the Government Code is amended to
read:
   19231.  (a) For the purposes of this article, the definitions in
Section 12926, as that section presently reads or as it subsequently
may be amended, apply.
  SEC. 2.  Section 19240 of the Government Code is amended to read:
   19240.  (a) The State Personnel Board shall be responsible for the
Limited Examination and Appointment Program.  This program shall
provide an alternative to the traditional civil service examination
and appointment process to facilitate the hiring of persons with
disabilities in the state civil service where accommodation can be
provided and where prohibitive physical requirements are not mandated
by the board.
   (b) "Disability" for the purposes of this article has the
definition set forth in Section 12926, as that section presently
reads or as it subsequently may be amended.
   (c) Notwithstanding subdivision (b), if the definition of
"disability" used in the federal Americans with Disabilities Act of
1990 (Public Law 101-336) would result in broader protection of the
civil rights of individuals with a mental or physical disability, as
defined in subdivision (b), then that broader protection shall be
deemed incorporated by reference into, and shall prevail over
conflicting provisions of, the definition in subdivision (b).  The
definition of "disability" contained in subdivision (b) shall not be
deemed to refer to or include conditions excluded from the federal
definition of "disability" pursuant to Section 511 of the federal
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12211).
  SEC. 3.  Section 19632 is added to the Government Code, to read:
   19632.  In any proceeding brought pursuant to Section 1094.5 of
the Code of Civil Procedure for the purpose of inquiring into the
validity of any final administrative order or decision by the board,
an award of costs or attorney's fees or both to the petitioner shall
be borne by the real party in interest and shall not be assessed
against the board, unless there is no real party in interest.  This
section may not be construed to authorize an award of attorney's
fees.
  SEC. 4.  Section 19702 of the Government Code is amended to read:
   19702.  (a) A person shall not be discriminated against under this
part because of sex, race, religious creed, color, national origin,
ancestry, marital status, physical disability, or mental disability.
A person shall not be retaliated against because he or she has
opposed any practice made an unlawful employment practice, or made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part.  For purposes
of this article, "discrimination" includes harassment.  This
subdivision is declaratory of existing law.
   (b) As used in this section, the term "physical disability" has
the definition set forth in Section 12926, as that section presently
reads or as it subsequently may be amended.
   (c) As used in this section, the term "mental disability" has the
definition set forth in Section 12926, as that section presently
reads or as it subsequently may be amended.
   (d) Notwithstanding subdivisions (b) and (c), if the definition of
disability used in the federal Americans with Disabilities Act of
1990 (Public Law 101-336) would result in broader protection of the
civil rights of individuals with a mental disability or physical
disability, as defined in subdivision (b) or (c), then that broader
protection shall be deemed incorporated by reference into, and shall
prevail over conflicting provisions of, the definitions in
subdivisions (b) and (c).  The definitions of subdivisions (b) and
(c) shall not be deemed to refer to or include conditions excluded
from the federal definition of "disability" pursuant to Section 511
of the federal Americans with Disabilities Act of 1990 (42 U.S.C.
Sec. 12211).
   (e) If the board finds that a person has engaged in discrimination
under this part, and it appears that this practice consisted of acts
described in Section 243.4, 261, 262, 286, 288, 288a, or 289 of the
Penal Code, the board, with the consent of the complainant, shall
provide the local district attorney's office with a copy of its
decision and order.
   (f) (1) If the board finds that discrimination has occurred in
violation of this part, the board shall issue and cause to be served
on the appointing authority an order requiring the appointing
authority to cause the discrimination to cease and desist and to take
any action, including, but not limited to, hiring, reinstatement, or
upgrading of employees, with or without backpay, and compensatory
damages, which, in the judgment of the board, will effectuate the
purposes of this part.  Consistent with this authority, the board may
establish rules governing the award of compensatory damages.  The
order shall include a requirement of reporting the manner of
compliance.
   (2) Notwithstanding paragraph (1), this paragraph shall apply to
state employees in State Bargaining Unit 6 or 8.  If the board finds
that discrimination has occurred in violation of this part, the board
shall issue and cause to be served on the appointing authority an
order requiring the appointing authority to cause the discrimination
to cease and desist and to take any action, including, but not
limited to, hiring, reinstatement, or upgrading of employees, with or
without backpay, adding additional seniority, and compensatory
damages, which, in the judgment of the board, will effectuate the
purposes of this part.  Consistent with this authority, the board may
establish rules governing the award of compensatory damages.  The
order shall include a requirement of reporting the manner of
compliance.
   (g) Any person claiming discrimination within the state civil
service may submit a complaint that shall be in writing and set forth
the particulars of the alleged discrimination, the name of the
appointing authority, the persons alleged to have committed the
unlawful discrimination, and any other information that may be
required by the board.  The complaint shall be filed with the
appointing authority or, in accordance with board rules, with the
board itself.
   (h) (1) Complaints shall be filed within one year of the alleged
unlawful discrimination or the refusal to act in accordance with this
section, except that this period may be extended for not to exceed
90 days following the expiration of that year, if a person allegedly
aggrieved by unlawful discrimination first obtained knowledge of the
facts of the alleged unlawful discrimination after the expiration of
one year from the date of its occurrence.  Complaints of
discrimination in adverse actions or rejections on probation shall be
filed in accordance with Sections 19175 and 19575.
   (2) Notwithstanding paragraph (1), this paragraph shall apply only
to state employees in State Bargaining Unit 8.  Complaints shall be
filed within one year of the alleged unlawful discrimination or the
refusal to act in accordance with this section, except that this
period may be extended for not to exceed 90 days following the
expiration of that year, if a person allegedly aggrieved by unlawful
discrimination first obtained knowledge of the facts of the alleged
unlawful discrimination after the expiration of one year from the
date of its occurrence.  Complaints of discrimination in disciplinary
actions defined in Section 19576.5 shall be filed in accordance with
that section.  Complaints of discrimination in all other
disciplinary actions shall be filed in accordance with Section 19575.
  Complaints of discrimination in rejections on probation shall be
filed in accordance with Section 19175.3.
   (i) (1) When an employee of the appointing authority refuses, or
threatens to refuse, to cooperate in the investigation of a complaint
of discrimination, the appointing authority may seek assistance from
the board.  The board may provide for direct investigation or
hearing of the complaint, the use of subpoenas, or any other action
which will effect the purposes of this section.
   (2) This subdivision shall not apply to complaints of
discrimination filed in accordance with Section 19576.2.
